Police allowed to retain DNA of ex-suspects

Controversial new rights allowing the police to retain DNA samples and fingerprints taken from suspects who are found to be innocent were yesterday upheld in the high court.

Lawyers for a boy and man who gave forensic samples when they were arrested but were not convicted had argued that a police force's refusal to destroy the samples violated their human rights.

But, to the concern of human rights campaigners, two senior judges ruled that South Yorkshire police were not acting illegally.

The case, which was seen as a test of the powers brought in under last year's Criminal Justice and Police Act, involved a 12-year-old boy, identified only as S, and a Sheffield man, Michael Marper.

S was 11 when he was arrested charged with attempted robbery. His fingerprints and DNA samples were taken in January 2001 but he was acquitted last June and the police were requested to destroy his fingerprints.

South Yorkshire police wrote to his solicitors informing them that they would be retaining fingerprints and samples which previously would have been destroyed "to aid criminal investigation".

Mr Marper, who had no previous convictions, was arrested and charged with harassment of his partner in March 2001. A trial did not take place because his partner did not press charges and the couple were reconciled.

But in June last year, the police refused his solicitors' request for the fingerprints and DNA samples he had given to be destroyed.

Richard Gordon QC, for both S and Mr Marper, argued that the policy contravened article eight of the Human Rights Act 1998 which states: "Everyone has the right to respect for his private and family life". The policy was "not necessary in a democratic society for the prevention of crime".

Lord Justice Rose and Mr Justice Leveson accepted that the practice "might arouse strong feelings" but ruled that it complied with human rights legislation. The samples which had been given would "remain untouched" unless they were found to match fresh samples from a crime scene.

A spokesman for human rights campaign group Liberty said: "This is a very disappointing decision - it must be wrong in principle to collect up DNA samples from innocent people."

When the powers came into effect last year, campaigners and some scientists expressed grave concerns. Helena Kennedy QC, the chair of the human genetics commission warned that the powers would create a class of people who were permanently under suspicion, even though they had never been convicted.

She said: "Being on a database of potential offenders which might be regularly trawled by the police means that one is on a list of suspects and that surely very subtly alters the way in which the state sees, and we see, our fellow citizens."

Sir Alec Jeffreys, a pioneer behind DNA fingerprinting and a researcher at Leicester University, said: "It is discriminating, inconsistent with privacy laws, and an example of ad hoc sloppy thinking."

Before the legislation came into force the police had pooled more than a million DNA samples from convicted criminals at a store near Birmingham, with 3,000 more arriving each day. The government is paying to expand that number to 3.5m within three years, giving police access to genetic data on every fifteenth Briton.

Countries such as Canada and France have introduced legislation to outlaw the practice of retaining samples of those acquitted of crime and samples from juvenile offenders are destroyed once they reach adulthood.